Citation Nr: 0425257
Decision Date: 09/14/04 Archive Date: 09/16/04
DOCKET NO. 01-06 324 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Newark, New
Jersey
THE ISSUE
Whether new and material evidence has been presented to
reopen a claim of entitlement to service connection for a
psychiatric disorder.
REPRESENTATION
Appellant represented by: Lewis C. Fichera, Attorney at
Law
ATTORNEY FOR THE BOARD
Nancy Rippel, Counsel
INTRODUCTION
The veteran had active military service from September 1988
to September 1989.
This matter comes before the Board of Veterans' Appeals
(Board) from an Order of the United States Court of Appeals
for Veterans Claims (Court) which vacated a July 2003 Board
decision in the same matter, and remanded the claim to VA for
further action consistent with a joint motion between VA and
the claimant. That decision was based on appeal from a
November 2000 rating decision of the Department of Veterans
Affairs (VA) Regional Office (RO) in Newark, New Jersey, that
denied the above claim.
The issue of entitlement to service connection for a
psychiatric disorder on the merits will be addressed in the
REMAND portion of this decision. That issue is REMANDED to
the RO via the Appeals Management Center (AMC), in
Washington, DC. VA will notify you if further action is
required on your part.
FINDINGS OF FACT
1. In May 1994, the RO determined that new and material
evidence had not been submitted to reopen a claim of
entitlement to service connection for a psychiatric disorder.
The RO properly notified the veteran of that decision, and he
did not perfect an appeal.
2. Since the May 1994 rating action, evidence bearing
directly and substantially on the claim of entitlement to
service connection for a psychiatric disorder, which is
neither cumulative nor redundant and which is, by itself or
in combination with other evidence, so significant that it
must be considered in order to fairly decide the merits of
the claim, has been submitted.
CONCLUSIONS OF LAW
1. The May 1994 RO decision determining that new and
material evidence had not been submitted with which to reopen
a claim of entitlement to service connection for a
psychiatric disorder is final. 38 U.S.C.A. § 7105 (West
2002); 38 C.F.R. §§ 3.160(d), 20.200 (2003).
2. New and material evidence has been received, and the
claim for service connection for a psychiatric disorder is
reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §
3.156(a) (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Factual background
The service medical records reflect that the veteran was
hospitalized from May to June 1989 during which time a
diagnosis of psychotic disorder, moderate, was made. A
medical board determined that this condition existed prior to
service and was not permanently aggravated therein and
determined that the veteran was unfit for further military
service. The hospitalization records reflect that the
veteran's problems began 1 to 2 years prior to June 1989, at
which time he was in college. At that time, he experienced
symptoms of depression and hearing voices, for which he
sought psychiatric care and was prescribed medication.
In October and November 1989, the veteran filed a
compensation claim for a psychotic disorder.
In a February 1990 statement, the veteran reported that pre-
service, the only psychiatric type treatment he had received
was during college from a counselor due to academic
pressures. He also indicated that these records or
documentation were not available.
In March 1990, a VA psychological evaluation was conducted at
which time atypical psychosis was diagnosed. Atypical
psychosis was also diagnosed during a July 1990 VA
psychiatric evaluation.
In an August 1990 rating action, the RO denied entitlement to
service connection for atypical psychotic disorder, reasoning
that the condition existed prior to service and was not
aggravated therein. The veteran was notified of that
decision the same month and did not appeal it.
In March 1993, the veteran filed to reopen the claim. In June
1993, he was notified by the RO that because he had not
appealed the August 1990 rating action, it became final, and
could not be reopened without the presentation of new and
material evidence.
In March 1994, Dr. Oscar Cardona Ramirez stated that he had
treated the veteran since February 13, 1988, and that the
veteran's emotional condition existed prior to service and
was aggravated by service.
In a May 1994 rating action, the RO determined that new and
material evidence had not been submitted with which to reopen
the claim. The RO explained that the evidence did not
demonstrate that the veteran's pre-existing psychiatric
condition was aggravated during military service. The
veteran was advised of that decision in May 1994 and did not
file a timely substantive appeal after the issuance of a
Statement of the Case in November 1994.
In December 1999, the veteran filed to reopen the claim for a
psychotic disorder. In July 2000 correspondence from the RO,
he was informed of what would need to be done to reopen the
claim.
VA treatment records for that time period show minimal
treatment for atypical psychosis.
By rating action of November 2000, the RO determined that new
and material evidence had not been submitted with which to
reopen the claim of entitlement to service connection for
psychosis.
Additional evidence was thereafter received. Records and an
opinion from Maureen Duffy, RN, psychiatric advanced practice
nurse, indicate the veteran has been treated at Cumberland
County Guidance Center since February 2000. Nurse Duffy
opined in a January 2001 statement that the veteran's current
mental health problems were the same ones he had in service.
In January 2001, a private medical record was received
indicating that in February 1993, the veteran was treated for
atypical psychosis in remission; in October 1995 he was
treated for paranoid disorder and in November 1998 for
schizoaffective disorder.
In a July 2002 statement, Dr. Oscar Cardona (a.k.a. Dr.
Ramirez) reviewed and restated his opinion that the veteran's
mental condition pre-existed service and was aggravated by
service.
Finally, in a report dated in July 2002, Dr. Jose E.
Villanueva made a diagnosis of schizophrenia, paranoid type.
Dr. Villanueva opined that the condition pre-existed service
and was aggravated by service.
I. Law and regulations
In order to establish service connection for a claimed
disability the facts must demonstrate that a disease or
injury resulting in current disability was incurred in active
military service or, if pre-existing active service, was
aggravated therein. 38 U.S.C.A. §§ 1110, 1131 (West 2002);
38 C.F.R. § 3.303 (2003).
Service connection for a psychosis may be established based
upon a legal "presumption" by showing that it manifested
itself to a degree of 10 percent or more within one year from
the date of separation from service. 38 U.S.C.A. §§ 1112,
1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2003).
For purposes of 38 U.S.C.A. § 1110, every veteran shall be
taken to have been in sound condition when examined,
accepted, and enrolled for service, except as to defects,
infirmities, or disorders noted at the time of the
examination, acceptance, and enrollment, or where clear and
unmistakable evidence demonstrates that the injury or disease
existed before acceptance and enrollment and was not
aggravated by such service. 38 U.S.C.A. § 1111 (West 2002).
The plain language of this statute provides that the
presumption of soundness is rebutted only if clear and
unmistakable evidence establishes both that (1) the condition
existed prior to service and (2) the condition was not
aggravated by service. A claimant is not required to show
that the disease or injury increased in severity during
service before VA's duty under the second prong of this
rebuttal standard attaches. VAOGCPREC 3-2003 (July 16,
2003); see generally Cotant v. Principi, 17 Vet. App. 116,
124 (2003) (CAVC raised the question of the proper
interpretation of sections 1111 and 1153 and the validity of
the pertinent part of 38 C.F.R. § 3.304(b) under that
interpretation).
A veteran employed in the active military service for six
months or more shall be taken to have been in sound condition
when examined, accepted and enrolled for service, except as
to defects, infirmities, or disorders noted at the time of
the examination, acceptance and enrollment, or where evidence
or medical judgment is such as to warrant a finding that the
disease or injury existed before examination, acceptance and
enrollment. 38 U.S.C.A. § 1132 (West 2002).
The United States Court of Appeals for the Federal Circuit
(Court) has recently held that 38 U.S.C.A. §§ 1110, 1131
provide compensation for disability incurred during wartime
and peacetime service and a presumption of soundness upon
entrance into service, except as to disorders noted at that
time, under 38 U.S.C.A. §§ 1111, 1132. Wagner v. Principi,
No. 02-7347, slip op. at 8 (Fed. Cir. June 1, 2004).
The Court held that, for peacetime service, "the presumption
is overcome 'where evidence or medical judgment is such as to
warrant a finding that the disease or injury existed before
acceptance and enrollment.'" Wagner v. Principi, No. 02-
7347, slip op. at 8-9 (citing 38 U.S.C. § 1132).
The Court held that, in the case of wartime service, "it may
be overcome only 'where clear and unmistakable evidence
demonstrates that the injury or disease existed before
acceptance and enrollment and was not aggravated by such
service.'" Wagner v. Principi, No. 02-7347, slip op. at 9
(citing 38 U.S.C. § 1111); see VAOGCPREC 3-2003 (July 16,
2003).
The CAVC has noted that the implementing regulation for the
forerunner of 38 U.S.C.A. § 1111, which was VA Regulation
1063 (1946), stated that the term "clear and unmistakable"
means obvious or manifest. Cotant, 17 Vet. App. at 127-128
(CAVC cited the definition set forth in Paragraph D of VA
Regulation 1063).
The CAVC has stated that the word "unmistakable" means that
an item cannot be misinterpreted and misunderstood, i.e., it
is undebatable. Vanerson v. West, 12 Vet. App. 254, 258
(1999) (citing Webster's New World Dictionary 1461 (3rd Coll.
ed. 1988); cf. Crippen v. Brown, 9 Vet. App. 412, 418 (1996)
(stating that "clear and unmistakable error" means an error
that is undebatable); Russell v. Principi, 3 Vet. App. 310
(1992) (en banc) ("The words 'clear and unmistakable error'
are self-defining. They are errors that are undebatable, so
that it can be said that reasonable minds could only conclude
that the original decision was fatally flawed.").
The CAVC has stated that the standard of proof for rebutting
the presumption of soundness is not merely evidence that is
cogent and compelling, i.e., a sufficient showing, but
evidence that is clear and unmistakable, i.e., undebatable ....
[and] the question is not whether the Secretary has sustained
a burden of producing evidence, but whether the evidence as a
whole, clearly and unmistakably demonstrates that the injury
or disease existed prior to service. Cotant, 17 Vet. App. at
132, citing Vanerson v. West, 12 Vet. App. at 261.
The law provides that, notwithstanding the provisions of
38 U.S.C.A. § 1132, the provisions of 38 U.S.C.A. §§ 1111,
1112, 1113 of this Chapter shall be applicable in the case of
any veteran who served in the active military, naval, or air
service after December 31, 1946. 38 U.S.C.A. § 1137 (West
2002).
If a disability is found to have preexisted service, then
service connection may be predicated only upon a finding of
aggravation during service. Paulson v. Brown, 7 Vet. App.
466, 468 (1995).
A pre-existing injury or disease will be considered to have
been aggravated by active military, naval, or air service,
where there is an increase in disability during such service,
unless there is a specific finding that the increase in
disability is due to the natural progress of the disease. 38
U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(a) (2003).
The Court has held that a corollary to the Secretary's
definition of "disability" in 38 C.F.R. § 4.1 is that an
increase in disability must consist of worsening of the
enduing disability and not merely a temporary flare-up of
symptoms associated with the condition causing the
disability. Davis v. Principi, 276 F.3d 1341, 1344 (Fed.
Cir. 2002). The Court stated: "[e]vidence of a temporary
flare-up, without more, does not satisfy the level of proof
required of a non-combat veteran to establish an increase in
disability. Davis, 276 F.3d at 1345; see Jensen v. Brown, 19
F.3d 1413, 1416 (Fed. Cir. 1994) (Court held that 38 U.S.C.A.
§ 1153 requires some increase in the severity of the
preexisting condition causally related to military service).
Aggravation may not be conceded where the disability
underwent no increase in severity during service on the basis
of all the evidence of record pertaining to the
manifestations of the disability prior to, during, and
subsequent to service. 38 U.S.C.A. § 1153 (West 2002); 38
C.F.R. § 3.306(b) (2003).
A decision of a duly constituted rating agency or other
agency of original jurisdiction is final and binding as to
all field offices of the Department as to written conclusions
based on evidence on file at the time the appellant is
notified of the decision. 38 C.F.R. § 3.104(a) (2003). Such
a decision is not subject to revision on the same factual
basis except by a duly constituted appellate authority. Id.
A finally adjudicated claim is an application which has been
allowed or disallowed by the agency of original jurisdiction,
the action having become final by the expiration of one year
after the date of notice of an award or disallowance, or by
denial on appellate review, whichever is the earlier. 38
C.F.R. §§ 3.160(d), 20.1103 (2003).
To reopen a claim which has been previously denied and which
is final, the claimant must present new and material
evidence. 8 U.S.C.A. § 5108 (West 2002). New and material
evidence means evidence not previously submitted to agency
decisionmakers which bears directly and substantially upon
the specific matter under consideration, which is neither
cumulative nor redundant, and which by itself or in
connection with evidence previously assembled is so
significant that it must be considered in order to fairly
decide the merits of the claim. 38 C.F.R. § 3.156(a) (2001);
see Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The
claimant does not have to demonstrate that the new evidence
would probably change the outcome of the prior denial.
Rather, it is important that there be a complete record upon
which the claim can be evaluated, and some new evidence may
contribute to a more complete picture of the circumstances
surrounding the origin of a claimant's injury or disability.
Hodge, 155 F.3d at 1363. For the purpose of establishing
whether new and material evidence has been submitted, the
credibility of the evidence, although not its weight, is to
be presumed. Justus v. Principi, 3 Vet. App. 510, 513
(1992).
The amendments to 38 C.F.R. § 3.156(a) relating to the
definition of new and material evidence apply to any claim to
reopen a finally decided claim received on or after August
29, 2001. The amendment is not applicable to the veteran's
claim, as he filed his claim prior to August 2001.
III. Analysis
The veteran maintains that new and material evidence has been
submitted with which to reopen and grant his claim of
entitlement to service connection for psychosis. He argues
that a pre-existing condition was permanently aggravated
during service. In recent memoranda, counsel for the
claimant has urged that service connection based on
continuity of symptomatology, as set forth in 38 C.F.R. §
3.303(b), also be considered. This necessarily contemplates
review on a direct basis as well.
In a May 1994 decision, the RO determined that new and
material evidence had not been submitted with which to reopen
the claim of entitlement to service connection for psychosis,
and the veteran did not perfect an appeal. The RO concluded
that the evidence did not show that a pre-existing psychosis
was aggravated by service. The May 1994 rating action
represents the most recent final decision regarding this
claim. See 38 C.F.R. §§ 20.200, 20.202, 20.302, 20.1103.
Accordingly, the Board must review the evidence submitted
since the May 1994 decision in order to ascertain whether new
and material evidence has been submitted addressing the
critical inquiry of whether the veteran's claimed psychosis
is related to service.
The Board concludes that new and material evidence has been
received. The statement of Dr. Villaneuva contains an
opinion favorable to the veteran's claim. It was not
previously considered and evaluated. It relates to a
critical element of this case, whether a pre-existing
condition was aggravated in service. Therefore, the evidence
is new and material and affords a basis under which to reopen
the claim.
Accordingly, the Board finds that the evidence received
subsequent to the May 1994 rating action is new and material
and serves to reopen the veteran's claim for service
connection for a psychiatric disorder. 38 U.S.C.A. § 7105
(West 2002); 38 C.F.R. § 3.156(a) (2001).
ORDER
New and material evidence having been submitted, the claim
for service connection for a psychiatric disorder, is
reopened. To that extent only, the claim is granted.
REMAND
Having reopened the claim, the Board finds that additional
development is required in order to comply with the Veterans
Claims Assistance Act of 2000 (VCAA), Pub.L. No. 106-475, 114
Stat. 2096 (2000).
A VCAA notice letter consistent with 38 U.S.C. § 5103(a) and
38 C.F.R. § 3.159(b) must (1) inform the claimant about the
information and evidence not of record that is necessary to
substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; (3)
inform the claimant about the information and evidence the
claimant is expected to provide; and (4) request or tell the
claimant to provide any evidence in the claimant's possession
that pertains to the claim. On remand, the RO must ensure
that all VCAA notice requirements have been met.
VA must also make reasonable efforts to assist the claimant
in obtaining evidence necessary to substantiate the claim for
the benefit sought, unless no reasonable possibility exists
that such assistance would aid in substantiating the claim.
38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d)
(2003). It has recently been noted that the veteran receives
Social Security disability benefits. His records should be
requested from the Social Security Administration (SSA). Any
additional VA and private medical records should also be
sought, including the veteran's actual treatment records from
Dr. Oscar Cardona Ramirez, dated from February 1988.
Assistance shall also include providing a medical examination
or obtaining a medical opinion when such an examination or
opinion is necessary to make a decision on the claim.
38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4)
(2003). A specialist examination should be requested in this
case.
Accordingly, the case is REMANDED for the following:
1. Inform the appellant about (1) the
information and evidence not of record that
is necessary to substantiate the claim; (2)
the information and evidence that VA will
seek to provide on his behalf; (3) the
information and evidence he is expected to
provide; and (4) request or tell the
appellant to provide any evidence in his
possession that pertains to the claim. A
copy of this notification must be associated
with the claims folder.
2. Ask the veteran to identify any
additional VA and non-VA health care
providers who have treated him for a
psychiatric disorder both prior to and
subsequent to his active service. Make
arrangements to obtain these records. The RO
should specifically make arrangements to
obtain the veteran's actual treatment records
(as opposed to summaries) from Dr. Oscar
Cardona Ramirez, dated since February 13,
1988.
3. Contact SSA and request copies of all
disability related decisions, as well as
supporting documentation, associated with any
decision.
4. Once the foregoing development has been
accomplished to the extent possible, and the
medical records have been associated with the
claims file, afford the veteran a VA
examination by a psychiatrist. The claims
folder must be made available to and reviewed
by the doctor prior to the requested
examination. The doctor should indicate in
the report that the claims file was reviewed.
The doctor must provide an opinion as the to
the diagnosis and date of onset of any
psychiatric disorder found to be present.
Is it at least as likely as not that any
current psychiatric disorder had its onset
during active service from September 1988 to
September 1989 or is related to any in-
service disease or injury?
If it is determined that the veteran's
psychiatric disorder existed prior to his
period of active service, was it aggravated
during active service? (Temporary or
intermittent flare-ups of a pre-service
condition, without evidence of worsening of
the underlying condition, are not sufficient
to be considered aggravation in service.)
If the psychiatric disorder was aggravated
during service, was it aggravated beyond the
natural progress of the disease?
The doctor must provide a comprehensive
report including complete and detailed
rationales for all opinions and conclusions
reached, citing the objective medical
findings leading to the conclusions.
5. Review the claims folder and ensure that
all of the foregoing development actions have
been conducted and completed in full. If any
development is incomplete, appropriate
corrective action is to be implemented.
Specific attention is directed to the
examination report. If the report does not
include adequate responses to the specific
opinions requested, the report must be
returned for corrective action. 38 C.F.R. §
4.2 (2003); see also Stegall v. West, 11 Vet.
App. 268 (1998).
6. Readjudicate the appellant's claim, with
application of all appropriate laws and
regulations, and consideration of any
additional information obtained as a result
of this remand. See 38 U.S.C.A. § 1132;
Wagner v. Principi, No. 02-7347 (Fed. Cir.
June 1, 2004); VAOGCPREC 3-2003 (July 16,
2003); Cotant v. Principi, 17 Vet. App. 116,
124 (2003). If the benefit sought on appeal
remains denied, the appellant and his
representative should be provided a
supplemental statement of the case. An
appropriate period of time should be allowed
for response.
Thereafter, subject to current appellate procedures, the case
should be returned to the Board for further appellate
consideration, if appropriate. The appellant has the right
to submit additional evidence and argument on the matter or
matters the Board has remanded to the regional office.
Kutscherousky v. West, 12 Vet. App. 369 (1999). The purposes
of this REMAND are to obtain additional information and
comply with due process considerations. No inference should
be drawn regarding the final disposition of this claim as a
result of this action.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory
Notes). In addition, VBA's Adjudication Procedure Manual,
M21-1, Part IV, directs the ROs to provide expeditious
handling of all cases that have been remanded by the Board
and the Court. See M21-1, Part IV, paras. 8.43 and 38.02.
______________________________________________
P. M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
VA
FORM
JUN
2003
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CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
VA
FORM
JUN
2003
(RS)
4597
Page
2